High Court of Australia

High Court of Australia

[Index] [Search] [Noteup] [Help]

THE REPATRIATION COMMISSION v. JOHN DAVID O'BRIEN (1985) 155 CLR 422

Repatriation Pension

COURT

High Court of Australia

Gibbs C.J.(1), Murphy(2), Wilson(1), Brennan(3) and Dawson(1) JJ.

HRNG

1984, September 13; 1985, February 27. #DATE 27:2:1985

JUDGE1

GIBBS C.J., WILSON and DAWSON JJ. The respondent served in the Royal

Australian Air Force from 20 January 1942 to 1 July 1946. He did not serve in

a theatre of war, his service being wholly confined to Australia. On 12 July

1946, a Repatriation Board, constituted pursuant to the Repatriation Act 1920

(Cth), as amended, ("the Act"), accepted a claimed incapacity for right

sesamoiditis hallux as due to war service. On 3 August 1954 a Repatriation

Board accepted a claimed incapacity arising from duodenal ulcer and fibrositis

as being due to war service. In 1961 anxiety hysteria was diagnosed and, on 9

November 1961, a Repatriation Board accepted the neurosis as due to war

service but assessed the incapacity as negligible. On 31 August 1970, a claim

in respect of a hiatus hernia was accepted. Apart from these claims, a number

of other claims were made over the years and were rejected. He was frequently

in receipt of treatment for stomach and back troubles. In 1970, the

assessment of his disability in respect of anxiety hysteria was raised from

nil to 20%. Finally, in October 1974, the respondent sought a war pension

because of a recently diagnosed condition of essential hypertension which he

claimed was related to his accepted disability of anxiety hysteria. A

Repatriation Board rejected the claim in August 1975. In the following four

and a half years the claim was considered on no less than five different

occasions by the Repatriation Commission ("the Commission"). On each of those

occasions the Commission considered the case on the basis of the evidence then

before it and on each occasion it rejected the respondent's appeal. So far as

the first four occasions on which the matter was before the Commission are

concerned, each successive decision was appealed to the War Pensions

Entitlement Appeal Tribunal, the case being returned to the Commission on each

of those occasions for reconsideration in the light of further evidence

tendered on behalf of the respondent. The decision of the Commission on the

fifth occasion was the subject of an appeal by the respondent to the Appeal

Tribunal but before the proceedings in that Tribunal were finalized the

Repatriation Acts Amendment Act (No. 18 of 1979) operated to replace that

Tribunal with the Repatriation Review Tribunal ("the Review Tribunal"). The

Review Tribunal then proceeded to hear the respondent's appeal as if it were

an application for review made to the Review Tribunal pursuant to s. 107VC of

the Act. During the hearing, the procedures contemplated by s. 107VZZB of the

Act were put in train, the end result of which was a direction by the

President of the Administrative Appeals Tribunal ("the AAT") in accordance

with s. 107VZZB(8) that the AAT review the five decisions of the Commission.

On 15 March 1983, the AAT delivered its decision affirming the decision of the

Commission to disallow the respondent's claim. Pursuant to s. 44 of the

Administrative Appeals Tribunal Act 1975, he appealed from that decision to

the Full Court of the Federal Court of Australia (Sweeney, Keely and

Fitzgerald JJ.) which unanimously set aside the decision of the AAT and

granted the claim. Thereafter this Court gave special leave for the present

appeal to be brought.

2. The hearing before the AAT produced a major battle of the medical experts.

In addition to many reports and opinions in writing, no less than eight

medical practitioners were examined and cross-examined on their written

opinions. There were two basic questions put in issue by the parties. The

first was whether an admitted condition of the applicant described as anxiety

neurosis or anxiety hysteria had arisen out of or was attributable to his war

service. The second was as to the connexion, if any, between that anxiety

state and the essential hypertension the subject of the claim. Five of the

medical witnesses were called by the respondent and their evidence, if

accepted, would have established both issues in the respondent's favour.

However, the other medical witnesses called by the Commission expressed quite

different opinions. In a lengthy judgment, the AAT examined the medical

evidence in detail and then made findings as follows:

"1. The applicant between 20 January 1942 and 1 July 1946, both

dates inclusive, was a member of the Forces on war service.

2. The applicant experienced a period of suppressed hostility

before and after the period of his war service induced by

circumstances at his work.

3. Applicant developed during or after his period of war service

an anxiety neurosis.

4. The cause of this anxiety state was some or all of the

following, viz., having a wife with a young child, then having a

wife who became pregnant in what were said to have been unfavourable

living conditions; having a wife who depended a lot on him; having

a wife who was unable to obtain suitable support systems for herself

within the community or reasonable accommodation; having a wife who

was threatening a jump over the Gap; having a wife who was

experiencing stress and he was removed from it; then having a will

to go overseas and living in the land (bind?) of his wife wanting

him near her; preoccupation with what he conceived to be the

attitude of his colleagues at work; and with the question of

overseas service.

5.If the applicant developed or there was aggravated an existing

condition of anxiety state during or after the period of his war

service, it did not arise out of nor was it aggravated by nor

attributable to his war service within the meaning of that

expression in the Act s. 100.

6. On 12 December 1974 the applicant was diagnosed as having

hypertension.

7.The applicant's hypertension arose out of or was developed by

reason of constitutional factors.

8. Any stress which may have aggravated the applicant's anxiety

neurosis or aggravated or contributed to the development of his

condition of hypertension did not arise out of nor was it

attributable to his said war service.

9. The applicant's incapacity from his condition of essential

hypertension did not arise, was not attributable to and was not

aggravated or accelerated his war service."

The AAT then proceeded at once to state its conclusion:

"On a consideration of all evidence and submissions, we are

satisfied beyond reasonable doubt that there are insufficient

grounds for granting the claim or application of the applicant."

3. The learned Solicitor-General for the Commonwealth, appearing on behalf of

the Commission, argues that the Federal Court should not have set aside the

decision of the AAT. He submits that the AAT was entitled to choose between

the conflicting medical testimony and to make the findings which it did even

though those findings involved the outright rejection of the opinion of some

of the medical experts. As a general statement of the role of a fact-finding

tribunal, the submission is of course clearly correct. But in its application

to a case requiring the determination pursuant to the Act of the entitlement

of an ex-serviceman to a pension the heavy burden of proof placed on the

Commission by the provisions of the Act to which reference will be made in

this judgment must always be borne in mind. The distinction is emphasized by

Aickin J. (with whose judgment Gibbs C.J., Stephen and Mason JJ. concurred) in

Repatriation Commission v. Law (1981) 147 C.L.R. 635, at p. 651:

"In a civil court it would be necessary for the judge, or the jury if

there were one, to hear oral evidence from the expert witnesses and to resolve

any conflict on the balance of probabilities, taking into account the

impression given by each expert witness. The Review Tribunal in the present

case was in a very different position. In the first place it had only the

written reports of the expert witnesses. Moreover it was required to find in

favour of the applicant unless it was satisfied beyond reasonable doubt that

there were insufficient grounds for doing so. Thus a heavy onus was placed

upon the Commission to satisfy the Tribunal beyond reasonable doubt of that

negative proposition. Although the medical reports were in conflict, no

challenge appears to have been made to the standing or expertise of any of the

medical experts. In that situation it is difficult indeed to see how the

Tribunal could properly have been satisfied beyond reasonable doubt that the

reports favourable to the applicant were wrong."

In Law, apparently, the Tribunal was prepared to find the facts on the basis

of medical reports. In the present case, many of the experts were called as

witnesses and subjected to rigorous cross-examination. When evaluating the

evidence, the AAT was entitled to put aside evidence of medical opinion

supporting a connection between the disability which was the subject of the

claim and the claimant's war service if, but only if, it was satisfied beyond

reasonable doubt that such evidence should not be accepted. As will appear,

it is unnecessary for us to examine the judgment of the AAT in detail in order

to determine whether it reflects the proper approach in this regard.

4. We have explained that the first of two basic questions put in issue by

the parties in the AAT hearing was whether the respondent's anxiety neurosis

had arisen out of or was attributable to his war service. The fifth finding

of the AAT determined this question in favour of the Commission. With all

respect and despite the valiant advocacy of the Solicitor-General, we consider

it to be a surprising conclusion. In our opinion, it flies in the face of

commonsense to say that an anxiety neurosis which is occasioned by reason of

the separation of the respondent from his wife because of his war service at a

time when she is in desperate need of his company is not attributable to that

war service. It is even more surprising when tested by the onus of proof

provision.

5. But in any event, Mr. Grieve, counsel for the respondent, takes a more

substantial objection to this finding. In his submission, the question of a

connexion between the respondent's anxiety neurosis and his war service fell

outside the terms of the reference to the AAT and should not have been

entertained by it at all. The provisions of s. 107VZZB of the Act outline

with some precision the circumstances in which a decision of the Commission

under review by the Review Tribunal may be referred by the President of that

Tribunal to the President of the AAT with a request for a review of that

decision by the AAT. Subsection (8) of the section obliges the President of

the AAT, upon receipt of such a request, to direct the review, in accordance

with the Administrative Appeals Tribunal Act, of the decision which has been

referred to him.

6. In the present case, the reference was confined to the five decisions of

the Commission whereby on each occasion the respondent's claim for a war

pension based on his essential hypertension was rejected. The decision of a

Repatriation Board in November 1961 accepting the respondent's anxiety

neurosis as due to war service has never been challenged by way of appeal.

The same is true of the decision of a Board in 1970 which raised the

assessment of his disability in respect of that neurosis from nil to 20%.

Whether or not the Commission considered it desirable to do so, in our opinion

it was not open for these earlier decisions to be reviewed and reversed in the

course of considering the respondent's claim based on his hypertension.

Neither of these earlier decisions were embraced within the reference to the

President of the AAT. The AAT therefore had no jurisdiction to review either

of those decisions: Administrative Appeals Tribunal Act, s. 25.

7. We are confirmed in our acceptance of Mr. Grieve's submission by the fact

that the Commission makes no response to it by way of reply. Further

confirmation is to be found in the statement made by the President of the

Review Tribunal when referring the matter to the President of the AAT, a

statement which he is obliged to make by s. 107VZZB(7). A paragraph of that

statement reads as follows:

"The first important principle of general application that arises in

this case is whether, on the medical evidence available in this case

concerning the relationship between the Applicant's accepted disability of

anxiety hysteria and the subsequent development of hypertension, the

Repatriation Commission, on a review of the case where these elements are

present, can be satisfied beyond reasonable doubt that there are insufficient

grounds for granting the application." (our emphasis).

It follows that the first of the two basic issues which the parties chose to